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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 22 of 155)
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* Second Appeal, No. 362, from an order of A, Sells, Esq., District Judge of Meerut,
dated the 14th December 1839, confirming the order of Munshi Jafar Hassain, Muriel
of Meerut, dated the 22nd of March 1689.

132



1?II] BANSI V. SIKBEE MAL 13 All. 213

legal starting point for the computation of a new period of limitation. 1890
It is alleged that the third application for execution which took place Nov. 4.

on the 12fch May 1886, was therfore time-barred and invalid, and could

not suffice to keep alive a decree already dead ; and that consequently APPEL-
the application of the 3rd June 1889 was time-barred. These objections LATE
were disallowed by the Munsif and the learned District Judge concurs CIVIL.

with him in that opinion. The learned Judge says : '

"In this case execution of decree was first applied for in April 1881, 13 A. 211 =
and proceedings continued till towards the end of 1882. On the 17th 10 A W.N.
February 1885, another application was made, notice issued, and attach- (1890) 230.
ment followed, but no objection was raised on the plea of limitation, and
this being sol do not consider that it can now be raised at the time
of this third period of execution proceedings." [I may observe parentheti-
cally that the learned Judge should have said, at the time of this fourth
period of execution proceedings.] The learned Judge continues : "Apart
from this, it is shown that on the 18!;h March 1882, the time of sale
drawing near, the decree-holder applied for permission to bid and this
was allowed, and this must, it seems to me, be considered to be a step
taken in aid of execution, and in my opinion, therefore, the plea of limitation
even would not avail."

[213] Against this contention Mr. Madho Prasad quoted Toree
Mahomed v. Mahomed Mabood Bux (1) where it was held that "the mere
payment of a Court-fee in connection with execution proceedings with a
view to obtain leave to bid for the property then up for sale in execution
of a decree does not constitute 'the taking of some step-in- aid of execution"
with in the meaning of No. 179, sch. ii, of the Limitation Act (XV of
1877)."

I observe that in that case the act alleged to be in furtherance of the
execution was the mere payment of a fee of Es. 2. In the present instance
it seems that the decree-holder did more. He applied to the Court for
permission to bid, and, with all respect to the Calcutta Court, I am unable
to see how such proceeding is other than taking a step-in-aid of execution
of decree.

Mr. Madho Prasad further urged upon my notice that the pro-
ceedings taken by the decree-holder in the year 1885 were very faulty,
in fact, the learned counsel stigmatized them as fraudulent. He urged
that no proper notice was given to the judgment-debtor, who was
in jail at the time, and was nob served with notice (as he alleges)
until after the expiry of the time for making objections. Be that as it
may, it does not appear to me that a Court can rip up the past proceedings
of other Courts and determine, for the purposes of deciding of limitation
in subsequent execution proceedings, whether those past proceedings were
properly conducted or not. No doubt the words of the law, No. 179,
clause (4), do show that the application, the date of which is to be the
starting point for a new period of limitation, must be an application in
accordance with law to the proper Court, but I take it that it does not
empower Courts in subsequent applications for execution to discuss the
propriety and legality of the action of previous Courts in previous execution
proceedings, but merely denotes that the application which is to form
the starting point for a new period of limitation is to be an application
not made out of Court, but made in Court, according to the general law
ior execution of decrees, and provided such application falls generally

(1) 9 C. 730.
133



13 All. 21*



INDIAN DECISIONS, NEW SEEIES



[Vol.



1890 under the provisions [214] of the law, the regularity of the procedure of

Nov. 4. former Courts is a matter beyond the cognizance of a subsequent Court of

execution. As to the chief objection taken by Mr. Madho Prasad, namely,

APPEL- that nearly four years bad elapsed between the date of the first and the

LATE second applications for execution, I am of opinion that the Judge assigns

ClVIL. 8d reasons for believing that the second application was not time-barred,

and, this being so, I have merely expressed my opinion that the lower

18 &. 211= appellate Court has come to a right conclusion in affirming the decree of

10 A.W.N. the Court of first instance. The appeal is dismissed. Eespondent not

(1890) 2SO. appearing, no order as to costs.

Appeal dismissed.



13 A. 214 = 11 A.W.N. (1891) 45.

APPELLATE CIVIL,
Before Sir John Edge, Kt. t Chief Justice and Mr. Justice Straight.



BHAGWANI AND ANOTHER (Petitioners') v. MANNI LAL
AND ANOTHER (Opposite Parties).* [31st January, 1891.]

Act VII of 1889 (Succession Certificate Act), ss. 9 and 19 Order granting certificate-
conditioned on the filing of security Appeal.

Where on an application for a certificate of succession under the Succession
Certificate Act (Act VII of 1889) an order was made granting the certificate con-
ditionally on the applicant's furnishing security.

Held that this was not an order " granting, refusing or revoking a certificate 1 '
within the meaning of s. 19 of the Act, and that therefore no appeal would lie
therefrom.

[Diss.. 25 C. 320 = 2 C.W.N. 59 ; 20 M. 442 '443) ; 5 M.L.J. 28 (29) ; P., 26 A. 173
(174) = 23 A.W.N. 225 ; 11 B. 790 (796) ; 2 A L.J. 606 (607) R., 4 Ind. Cas. 639
(640) = 4 P.L.E. 1909 = 139 P.R. 1908 ; 5 0.0. 213 (214) ; Expl. & D., 36 B. 272
(274) = 12 Ind. Cas. 921 = 13 Bom. L.R. 1208,]

THE question decided in this appeal originally came in first appeal
before Mahmood, J., t and was by him decided on grounds similar to
those on which the judgment of the Court in the present appeal is based.
The facts of the case sufficiently appear from the judgment of Mahmood, J.
which is as follows :

MAHMOOD, J. Upon this appeal being called on for hearing, Pandit
Sundar Lai, holding Mr. Ram Prasad' s brief for the respondent, has taken
a preliminary objection to the effect that the appeal is premature, as no
such order as that contemplated by s. 19 of the Succession Certificate
Act (VII of 1889) has yet been made in [215] the case. In support
of this objection the learned pleader relies on the principle of a Division
Bench ruling of this Court in the case of Ali Ahmed Khan, appellant (1),
which, however, related to ss. 22 and 28 of Act XL of 1858. In that case
the principle was laid down that no appeal lay from interlocutory orders
under that enactment. Mr. Amir-ud-din in resisting this contention
on the preliminary point has invited my attention to the provisions of
ol. (3), of s. 7, cl. (/) of s. 6, and ss. 10, 11 and 12 of the Act (VII of 1889)
and with reference to these provisions he has argued that the learned

* Appeal No. 47 of 1890, under B, 10 of the Letters Patent.

t First Appeal, No. 46 of 1890, from an order of H.T.D. Pennington, Esq., District-
Judge of Ghazipur, dated the 21st March 1890. [10 A.W.N. (1890) 198.]

(1) 4 A.W.N. (1884) 318.

134



YII] BHAGWANI V. MANNI LAL 13 All. 216

District Judge's order of the 21st March 1890, from which this appeal has 1891
been preferred, is erroneous in law. JAN. 31.

I do not, however, think that it is necessary for me ab this stage to
adjudicate upon the question whether the opinions expressed by the District APPEL-
Judge aad the action which he has taken are in accordance with law. LATE
What I have to consider is whether the order of the learned District Judge, OlVIL.
dated the 21st March 1890, from which this appeal has been preferred,
was a final adjudication, that is, such an order as s. 19 of the Succession 1S A - 214=
Certificate Act (VII of 1889) contemplates. That section is the solitary H A.W.N.
authority under which any appeal from orders under the enactment can (1891) 5,
lie. The right of appeal is a creation of the statute, and if the order
complained of in this appeal does not fall under the section, the appeal
is premature and unsustainable at this stage.

Now it seems to me that the order appealed from was only an inter-
locutory order, aad not the final order in the case. The learned District
Judge expressed his intention to give the certificate to the appellants on
their furnishing security to the amount of Rs. 20,000, and he gave them
a month for compliance. He disallowed their plea that security for
Rs. 3,000 was sufficient under the circumstances of the case, but whether
such rejection of the plea was right or wrong, the order of the 21st March
1890, from which this appeal has been preferred, is not an order "granting,
refusing or revoking a certificate" within the meaning of s. 19 of the
Succession Certificate Act (VII of 1889) which is the only authority for
the right of [216] appeal. The final order remains yet to be made by the
District Judge.

The preliminary objection prevails, and I hold that this appeal has
been prematurely preferred and does not lie. I dismiss it with costs.

Against this judgment the present appeal under s. 10 of the Letters
Patent was preferred by the petitioners.

Mr. Amir-ud-din, for the appellants.

Munshi Bam Prasad, for the respondents.

JUDGMENT.

EDGE, C. J., and STRAIGHT, J. We entirely concur with the order
passed by our brother Mahmood, anrl with his reasons for it. The appel-
lants applied for a certificate under Act VII of 1889. The Judge, acting
under s. 9 of that Act, required security as a condition precedent to his
granting the certificate. He was proposing to proceed under s. 7, cl, (3).
S. 19 provides for appeals. There was no order granting or refusing a
certificate. Our brother Mahmood was right in holding that no appeal
lay. We dismiss this appeal with costs.

Appeal dismissed.



135



1891

FEB. 4.

APPEL-
LATE
CIVIL.

ISA 216 =
11 l.W.N
(1891) 57.



13 All. 217 INDIAN DECISIONS, NEW SERIES

13 A. 216 = 11 A.W.N. (1891) 57.
APPELLATE CIVIL.

Before Mr, Justice Straight and Mr. Justice Tyrrell.



[Yol.



BHAWANI BAKHSH AND ANOTHER (Plaintiffs) v. RAM DAI AND
OTHERS (Defendants)* [4th February, 1891.]

Hindu law Joint Hindu family Mortgage executed by father on the whole joint family
property in resptct of hit own debts Liability of sons Burdtn of pioof.

The father of a joint and undivided Hindu family executed a mortgage over the
whole immoveable property of the joint family. The mortgagees having obtained
a deoree on their mortgage and having put an attachment on the joint family
property t the minor sons of the mortgagor sued for a declaration that their inter-
est in the attached property was not liable under the mortgagees' deoree, inas-
much as the debts in respect of which the mortgage had been executed had been
contracted for immoral purposes and were not such as they, by the Hindu law,
were under a pious obligation to discharge. Held that the burden of proving
that the debts in question were contracted for the purposes alleged lay on the
plaintiffs.

[217J Beni Modho v. JBasieo Patak (1) followed ; Lai Singh v. Deo Narain.
Singh (2) ; Basa Mai v. Maharaj Singh (3) ; Subramanya v. Sadasiva (4) ;
Hanooman Peis%ud Panday v. Munraj Koonweree (5) ; and Bhagbut Per shad
Singh v. Girja Koer (6) referred to.

[F., 1 O.C. 53 (59) ; Appt.. 14 A. 179 (183) ; R., 28 A.. 508 (528) = 3 A.L.J. 274 =
A.W.N. (1906) 117 ; 31 A. 176 = 6 A.L.J. 263 = 1 Ind. Gas. 479 (498); 4
Bom. L E. 587 (600) ; 6 O.P.L.R. 140 (HI) ; 16 C.P.L.R. 169 (170).]

THE facts of this case are fully stated in the judgment of Straight, J.
Mr. C. Dillon, Munshi Jivala Prasad and Babu Jogindro Nath
Chaudhri, for the appellants.

Mr. T. Conlan and Hon. G.T. Spankie, for the respondents.

JUDGMENT.

STRAIGHT, J. This appeal relates to a suit that belongs to a well-
known class of cases in which the minor sons of a Hindu father, along
with whom they were members of a joint and undivided Hindu family t
seek to exempt their interests in the joint estate from the operation
of a mortgage executed by the father of the entire family share in
immoveable property and a decree obtained thereon by the mortgagee,
followed by attachment of the whole joint family interest. The two
minors in the present suit, with their mother as their guardian " ad
lilem," who also sues on her own account, are the plaintiffs, and the
first defendant, when the suit was instituted, was their father, SadaNand,
who has died pendente lite, while tha sons of Lala Ram Charan Lai,
the mortgagee and creditor of Sada Nand, were the twosother defendants.
It is not necessary to detail at lengbh the terms of the plaint. It is
enough to say that the plaintiffs allege that the mortgage transaction,
out of which the decree passed against their father upon the mortgage
arose, represented a debt incurred by their father, which, under the
Hindu law, ib was not their pious duty' or obligation to discharge. This
particular mortgage transaction was dated the 5th August 1882, and
feo total consideration for it was the sum of Rs. 2,959-10-0. The



First Appeal, No. 144 of 1888, from a deoree of Babu Nilmadhub Eoy, Subor-
dinate Judge of Gorakbpur, dated the 21st June 1888.

(1) 12 A. 99. (2) 8 A. 279. (3) 8 A. 205.

U) 8 M. 75. (C) 6 M.I.A. 398. (6) 15 0. 717.

136



BHAWANI BAKHSH V. EAM DAI



13 All. 219



decree was obtained by the mortgagee for the sale of the mortgaged pro-
perty upon the 31st July 1886. An attachment of the whole zemindari
interest was then put on, to which attachment the plaintiffs offered
objections. Their objections were disallowed on the [218] 9th April
1887 ; heoce tho present suit to have it declared that the rights of
the several plaintiffs should be exempted from the attachment and
threatened sale ; in other words, the plaintiffs say that the defendants
are not entitled to sell more than the individual interest of their father.
It is admitted on all hands that the mortgage of the Sbh August 1882 was
a mortgage of the whole of the family interest in two mauzis. It is also
admitted that the decree was passed against the father upon the mortgage
for the sale of the whole property without limitation or exception of any
kind, and it is further admitted that the attachment, which still
holds upon the property, is an attachment that prima facie affects
the entire interest. The defence of the creditors to the suit was
generally to the effect that the father of the minor plaintiffs was not the
immoral person he was represented to be ; that the money was advanced to
meet the valid necessities of the family ; and that the father in his charac-
ter of father of minor sons of a joint Hindu family was the managing
member, and, as such, entitled to sell or mortgage for the necessary purposes
of the family the joint family property. The learned Subordinate Judge, a
Hindu Judicial Officer of long experience, who tried the case, though he
does not in terms say that he did so, cast the onus of proving the allega-
tions contained in the plaint upon the plaintiffs, and, in my opinion,
rightly. Upon the evidence which they produced, consisting of the oral
testimony of several witnesses and documentary evidence in the shape of
prior bonds of Sada Nand's, be came to the conclusion that the money
had boen borrowed by the father for immoral expenses, and that the defen-
dants were affected with notice of the purpose for which the money
was required, and that they knew at the time they made the advances the
purposes to which they were to be devoted. He therefore gave the two
minor plaintiffs a decree, by which their interests in the property mortgaged
by their father were exempted from the operation of the mortgage-decree
and attachment, but as regards the claim of the plaintiff mother, he held
that she, not being an heiress under the Hindu law, could not claim any
share, though, had a partition taken place, she would then have been entitled
to [219] share. With regard to her.therefore, the suit was dismissed. The
appeal to this Court by the defendants has been fought upon two grounds
only. The first of them is that the onus of proof was wrongly thrown
upon them. The second is that the proof presented by the plaintiffs and
the findings of the learned Subordinate Judge thereon are not sufficient to
sustain the decree, and in this connection it was incidentally urged that
the defendants had proved that the loan made to the father was for legal
purposes. There is no appeal on behalf of Musammat Earn Dai for herself
to the effect that the learned Subordinate Judge's dismissal of her claim
was erroneous. As to the first point raised, namely, as to with whom
rested the onus, I do not observe, as I have remarked already, anything in
the learned Subordinate Judge's judgment to indicate specific expression
of his view as to with whom it lay ; but I have no doubt, and in express-
ing this opinion I am only following the authority of Beni Madho v. Basdeo
Patak (l), that the burden of proof rested upon the plaintiffs, who could
only escape from their obligation under the Hindu law to pay the debt



1891

FEB. 4.

APPEL-
LATE
CIVIL.

13 A. 216-
11 A.W.N.
(1891) 57.



A VII 18



(1} 12 A. 99.

137



13 All 220



INDIAN DECISIONS, NEW SERIES



[Yol.



1891

FEB. 4.

APPEL-
LATE
CIVIL.

13 A. 216 =
11 l.W.H.
(1891) 57,



incurred by their father by showing that the debt was one incurred
for immoral purposes. Reference haa been made on the other side in
the course of the hearing of the appeal to numerous authorities of their
Lordships of the Privy Council and to a ruling of this Bench in Lai
Singh v. Deo Narain Singh (1), which is in consonance with the ruling of
the Madras High Court in Subramaniya v. Sadasiva (2). Whatever may
have been the view expressed in these two last-mentioned rulings upon the
authorities as they stood at the time they were given, it seems to me that,
for the reasons vrhich were stated by me, with the approval of Sir Comer
Petberam, in the case of Basa Mai v. Maharaj Singh (3), and in the case of
Bent Madho v. Basdeo Patak (4), already referred to, it does not now repre-
sent the correct rule of law as declared by the later decisions of their Lord-
ships of the Privy Council which are set out in detail in those two last-men-
tioned rulings. With regard to the caseof Lai Singh v. Deo Narain Singh (1),
it was a judgment [220] of my own in which my brother Tyrrell concurred,
and it is to be noted that it proceeded largely, if not entirely, upon the
principles laid down in the well-known case of HunoomanPersaudPanday (5).
But it seems to me that in thecase of Lai Singh v. Deo Narain Singh (1).
I omitted to bear in mind the distinction that the case of Hunooman Persaud
Panday was the case of a guardian and manager of an infant in the person
of a mother with whom certain transactions were had, and that it was not
the caseof a Hindu father living jointly with his minor sons whose position
is a very different one. As regards the powers of an ordinary guardian
these are limited, while the powers of a father as manager for his minor sons
can only be questioned by those sons when he has effected a charge on the
whole property, upon the ground that the charge so created was for immoral
purposes, that is to say, for purposes which.it was not their pious obligation
to discharge. At least this is what I take to be the outcome of all the autho-
rities uppn the subject, and that, while it may well be that in a family of
joint brothers, or in the case of a guardian of the kind I have mentioned, the
rule of Hunooman Persaud Panday's case may be properly applied ; in the
case of a father, who is admittedly the managing member of the joint
family, it being the pious obligation of his sons to pay his debts, except
under certain circumstances, the presumption is that his debts have been
legally incurred until the sons have shown to the contrary. Uuon further
consideration, therefore, I have come to the conclusion that the case of
Lai Singh v. Deo Narain Singh (1), so far as it laid down that the onus
rested upon the creditor in reference to a transaction with the father in
his capacity of a managing member of a joint family, was wrong, and I am
borne out in this by the case of Bhagbut Pershad Singh v. Girja Koer (6).
In the last passage of the judgment in the case of Beni Madho v. Basdeo
Patak(^), I stated what seemed to me to be the outcome of the latter rulings
that succeeded the ruling in Basa Mai v. Maharaj Singh (3i, and for the
purpose of guarding against any misunderstanding I may here repeat that in
[221] my opinion in all cases like the present, where a son or sons is or
are coming into Court to assail a mortgage of the whole joint estate made
by the father, upon which a decree has been passed against him and sale
has been ordered of the whole estate and an attachment has been made of
the whole estate, the son or sons can only escape from the effect of the
decree and attachment by showing that the debt in respect of which the
transaction of mortgage originated was a debt which they, as the sons of



(1) 8 A. 279.

(5) 6 M.I.A. 393.



(2) 8 M. 75.
(6) 15 G, 717.



(3)8 A, 205,



(4) 12 A. 99.



138



YII] BHAWANI BAKHSH V. RAM DAI 13 All. 222

a Hindu and members of a joint Hindu family, were not under a pious 1891
obligation to discharge. Whether or not it was necessary for the decree- FEB. 4.
holder with a decree for sale to resort to an attachment I do not stop to
enquire. In the present case he has done so, and in that way an oppor- APPEL-
tunity presented itself to the minor plaintiffs to make the objection which LATE
brought about the present suit. In saying this it must not ba understood OlVIL.
to mean that, if the mortgagee had sold the property, without first putting
an attachment on it and had purchased ic himself or had sold it to others, 13 A. 216 =
the sons could not have brought a suit on the same grounds upon which 11 A.W.N.
they now come forward. Mr. Spankie for the plaintiffs admits that the (1891) 37,
onus may ordinarily rest upon them to establish the immorality of the debt,
and the only distinction that he seeks to have drawn is that if the decree-
holder himself was the purchaser, then the onus would rest upon him but
I fail, for the purpose of dealing with the question withwhom the proof lies
in cases of this kind, to see why any distinction should be drawn between a
stranger-purchaser at an execution-sale and the decree-holder who himself
becomes the purchaser. If my view in this respect is right, then arises the
question have the plaintiffs satisfactorily established the case upon which
alone they can succeed? I have remarked above that the learned Subordi-
nate Judge who tried the case was a Hindu gentleman of long judicial experi-
ence, and I thick that this is not a wholly unimportant circumstance in
judging as to the value of bis opinion on the merits of a case like the present.
He has found in terms that the father of the minor plaintiffs was a dissolute,
disreputable person, given to gambling, to keeping prostitutes, to drinking
strong liquor and to smoking opium ; in other words, he has come to the
conclu-[222]sion that the life of the father was an evil one. To use the
learned Subordinate Judge's own words :

" Sada Nand was a known gambler and spendthrift. He used to smoke
Chandu and keep prostitutes. He was a confirmed drunkard. He had
been borrowing these moneys for these immoral expenses. Defendants live
near plaintiff's house. They were fully aware of his bad habits, and yet
these greedy and grasping banias advanced large sums of money for their
own selfish ends and for the ultimate ruin of this wretched family. The
character of Sada Nand has been proved by the evidence of the koiwal
and other respectable witnesses. It is a notorious fact in this city (as
proved by the evidence in the record) that Sada Nand was a man of bad
character, and that he was borrowing large sums of money to meet his
selfish and immoral demands. These creditors, who are almost his
next-door neighbours, advanced large sums of money fully knowing
how those sums were spent. No legal necessity has baen proved. I
fail to understand how plaintiffs were benefited by this loan. No house
was built at Soomli. No money was paid in any taksim case, and the
private expenses were nothing but money spent in ganja, opium, wine,
gambling and bazar women. A Court of justice can never tolerate the
advancement of money for such immoral purposes, and the ancestral pro-



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 22 of 155)